United States District Court, W.D. Louisiana, Lafayette Division
ORDER REGARDING MOTION FOR APPOINTMENT OF
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Appointment of Counsel filed by
pro se plaintiff, Cheryl Robichaux Riley, on April
16, 2019 [Doc. 16].
plaintiff seeks appointment of counsel in connection with
this employment discrimination suit under Title VII of the
Civil Rights Act, which affords courts discretion to appoint
counsel. 42 U.S.C. § 2000e-5(f)(1) ("[u]pon
application by the complainant and in such circumstances as
the court may deem just, the court may appoint an attorney
for such complainant[.])"
rights plaintiff has no absolute right to an appointed
counsel. Rather, the decision of whether to provide counsel
lies solely within the discretion of the court. Salmon v.
Corpus Christi I.S.D., 911 F.2d 1165, 1166
(5th Cir. 1990); Gonzalez v. Carlin, 907
F.2d 573, 580 (5th Cir. 1990), citing Caston
v. Sears, Roebuck & Co., 556 F.2d 1305
(5th Cir.1977); Johnson v. City of Port
Arthur, 892F.Supp. 835, 839 (E.D.Tex.1995).
Fifth Circuit has set forth three general factors in
evaluating applications for appointment of counsel in Title
VII cases. Caston, 556 F.2d at1309-10. The factors
are: (1) the effort taken by the complainant to obtain
counsel on his or her own, (2) the complainant's
financial ability to retain counsel, and (3) the merits of
the complainant's claims of discrimination. See also
Neal v. IAM Local Lodge 2386, 722 F.2d 247, 250
(5th Cir.1984). The first factor requires a
determination regarding plaintiff's efforts to obtain
counsel. The plaintiff has attached to her motion a list of
twelve attorneys she has contacted to take her case; all of
these attorneys either did not respond to her request or
stated specific reasons for why they could not represent her.
Consequently, this factor has been satisfied.
second factor relates to the plaintiff's Application to
Proceed in Forma Pauperis. The Court granted the
plaintiff's motion for in forma pauperis status [Doc. 4],
therefore, the second factor has been satisfied.
with respect to the merits of plaintiff's claim, the
court must consider the determination of the EEOC. While an
unfavorable determination must be considered, it cannot be
given preclusive effect. An adverse EEOC determination may
"weigh heavily in the scales against appointing an
attorney “only when the court finds "the EEOC
determination is supported by substantial evidence in the
investigative file and that the plaintiff's objections
thereto are patently frivolous." Caston, 556
F.2d at 1309; see also Neal, 722 F.2d at 250. The
attachments to plaintiff's complaint indicate that
claimant filed Charge No. 461-2017-00798 in March, 2017. On
May 30, 2018, the EEOC indicated that it was closing its file
because “[b]ased upon its investigation, the EEOC is
unable to conclude that the information obtained establishes
violations of the statutes.” In Neal, the
Fifth Circuit, in reviewing the magistrate's denial of a
requestfor an attorney, remanded the case, stating that
“[t]he Magistrate in this case did nothing more than
review the allegations in the complaint." Neal
at 249. Because very little information is contained in the
Complaint and the attached EEOC documents in this matter, I
find there is insufficient information in the record at this
time to make an evaluation of plaintiff's claim.
Fifth Circuit has acknowledged the propriety of a magistrate
judge's review of the EEOC investigative file for the
purpose of evaluating the merit of a Title VII claim.
Neal, 722 F.2d at 250. In the instant case, the
EEOC's file is not in the record; thus, I will order the
EEOC to file a copy of their investigative file of the
plaintiff's claims in this matter.
IS THEREFORE ORDERED that the EEOC shall file a copy
of its investigative file, including any computer-generated
notes, regarding Cheryl Robichaux Riley, Charge No.
461-2017-00798, into the record by May 10, 2019. Any
documents as to which the EEOC asserts the deliberative
information privilege shall be produced directly to the
chambers of the undersigned for in camera
IS FURTHER ORDERED that, upon receipt of the EEOC
file, the Clerk of Court shall mail a copy of the file to
plaintiff. Plaintiff's response is due ten days from her
receipt of the EEOC file.
IS FURTHER ORDERED that the Clerk shall send a copy
of this Order to the EEOC, New Orleans Field Office, 1555